Citation Nr: 0316919
Decision Date: 07/21/03 Archive Date: 07/31/03
DOCKET NO. 98-15 658A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC)
benefits under the provisions of 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Bredehorst, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1944 to
August 1945. The veteran died on December [redacted]
, 1995. The
appellant is the veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions in April 1996 and
October 1997, which denied service connection for the cause
of the veteran's death, entitlement to Dependent's
Educational Assistance under the provisions of 38 U.S.C.A.
Chapter 35, and DIC benefits under the provisions of 38
U.S.C.A. § 1151. The only issue that is on appeal to the
Board is entitlement to DIC benefits under 38 U.S.C.A. §
1151.
This case was previously before the Board in May 2000 at
which time it was remanded for additional development.
FINDINGS OF FACT
1. All of the evidence necessary for an equitable
disposition of the claim has been obtained by the RO.
2. The veteran died in December 1995 as a result of
gastrointestinal bleeding due to or as a consequence of liver
failure and primary biliary cirrhosis (PBC).
3. VA treatment in 1969 did not result in additional
disability nor did it cause, aid, lend assistance to, combine
with another disorder, or have a significant role in the
veteran's death.
CONCLUSION OF LAW
The criteria by which DIC may be awarded under the provisions
of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A.
§§ 1151, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.358,
3.800 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West 2002). In addition, regulations implementing the VCAA
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002)), were published at 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) (codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326 (2002)). The Board will
assume for the purpose of this decision that the liberalizing
provisions of the VCAA and the implementing regulations are
applicable to the issue on appeal.
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.
Through a September 1998 statement of the case and
supplemental statements of the case dated in March and May
2003, the appellant and her representative have been notified
of the law and regulations governing entitlement to the
benefits sought, the evidence that would substantiate the
claim, and the evidence that has been considered in
connection with the appeal. Correspondence dated in May 2000
asked the appellant to supply additional evidence and
information and informed her of additional steps taken by the
RO to help develop her claim.
The Board finds that the aforementioned documents, which are
incorporated herein by reference, collectively satisfy the
statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002)
(addressing the duties imposed by 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159). In view of the foregoing, the Board
finds that the appellant has received sufficient notice of
the information and evidence needed to support the claim, and
has been provided ample opportunity to submit such
information and evidence. The duty to assist the veteran in
obtaining evidence to substantiate her claim has been met
through VA's attempt to obtain VA records, private medical
records, and a medical opinion.
Factual Background
Medical records from the VA Hospital in Washington, D.C.,
indicated that in March 1969, the veteran was admitted and
underwent a routine left inguinal herniorrhaphy in April
1969. A lipoma of the cord was discovered and an indirect
sac was ligated and excised. The operative report estimated
that 50 cc of blood was lost and indicated he was put under
general anesthesia using Halothane. The veteran encountered
no excessive bleeding and tolerated the procedure nicely.
Postoperatively, he had no problems whatsoever and was
discharged on the seventh postoperative day after the sutures
were removed. Progress notes during the weeks following the
operation, indicated the wound healed without incident.
A statement from Thomas S. Sappington, M.D., dated in April
1979 indicated that he first saw the veteran in June 1976.
Physical examination was unremarkable and a urinalysis and
complete blood count were normal.
A medical statement dated in April 1983 from William C.
Casey, M.D., indicated that the veteran was first seen one
year earlier at which time blood work screening revealed
abnormalities of liver function. Further investigation was
recommended at that time. It did not appear to Dr. Casey
that the veteran followed through with additional studies;
therefore, he felt it was necessary to discontinue
prescribing medicine for the veteran.
A consultation report from a VAMC dated in July 1987
indicated the veteran had been told by his primary physician
five years earlier that he had an abnormal liver function
test. No follow-up was noted. He had cataract surgery in
May 1987 and was found to have abnormal liver enzymes. There
was no history of jaundice, hepatitis, alcohol abuse, or
weight loss. A liver/spleen scan and abdominal sonogram
were performed and liver function tests were repeated. The
impression was elevated alkaline phosphate, rule out PSC
(primary sclerosing cholangitis) and bile duct neoplanter
lesion. A gastrointestinal note dated in August 1987
indicated that a diagnosis of PBC (primary biliary cirrhosis)
was established on the basis of AMA.
Progress notes dated in February 1989 from a VA Medical
Center (VAMC) in Washington, D.C., noted a history of PBC
that was status post a 1968 blood transfusion. The history
also noted probable non A- non B hepatitis secondary to a
transfusion that led to liver cirrhosis and PBC. A list of
prior hospitalizations and operations included a 1968 left
inguinal herniorrhaphy that required a transfer. A
hospitalized for hepatic cirrhosis in 1987 was noted.
A discharge summary from a VAMC dated in March 1989 noted PBC
among the diagnoses listed. The past medical history
reported indicated that PBC was documented by liver biopsy
and that there was a history of hepatitis after a blood
transfusion in 1986 for surgery.
VA outpatient progress notes dated from 1990 to 1995 included
treatment for PBC. The history of PBC that was recorded
included substantially the same information; however, there
were inconsistencies in reports pertaining to when PBC was
initially diagnosed.
A certificate of death showed the veteran died while a
patient at Fair Oaks Hospital. The immediate cause of death
was gastrointestinal bleeding, which was due to or as a
consequence of liver failure and PBC. Liver disease was
noted to contribute to death but not resulting in the
underlying cause. The certificate did not indicate whether
or not an autopsy was performed.
In a statement dated in March 1996, the appellant indicated
that her husband had been hospitalized at a VA Hospital in
1967 and was transferred to Bethesda Naval Hospital for a
hernia operation. During a blood transfusion, he developed
additional disability, which the appellant claimed was
chronic liver disease. She believed this was caused by lack
of proper skill or negligence during the VA operation.
Photocopies of pages in the sixteenth edition of The Merck
Manual were received by the RO. Portions highlighted
included the definition of no-A and non-B hepatitis, a
description of true hepatitis as a postoperative disorder,
and the transmission of viral hepatitis. Also highlighted
was a sentence that stated anesthesia with Halothane or
related agents may also produce postoperative hepatitis and
should be suspected if hepatitis develops within 10 days of
surgery.
A statement from the appellant's representative dated in
February 1997 contended that the veteran's non-alcoholic
cirrhosis was secondary to hepatitis that was acquired
through a 1969 blood transfusion at a VA hospital. In
October 1997, the appellant's representative also pointed out
that the veteran was given the anesthetic Halothane during
surgery and that according to The Merck Manual it could cause
hepatitis in some patients.
The appellant submitted a copy of newspaper articles from The
Washington Post dated in March and August 1997 that discussed
the effects, cause and transmission of hepatitis C.
The veteran's claims folder was reviewed by Doris B. Strader,
M.D., a VA physician, in June 1998. The doctor stated that
there was no indication that the veteran ever had viral
hepatitis or received a blood transfusion at any time during
his care at the Washington VAMC. The physician specifically
referenced an April 1969 operative report that reported there
was no excessive bleeding during the procedure. PBC was
noted to be a condition that is not transmitted parenterally,
but rather, is possibly related to autoimmune phenomena. The
opinion was that the veteran did not have a documented
history of viral hepatitis nor was it documented that he
received a blood transfusion during his surgery in April
1969. He had a liver disease called PBC, which likely
contributed to his death, but was not related to any
procedure performed during the above-mentioned surgery.
Statements contained in the appellant's October 1998
substantive appeal indicated that she and her
representative's requests for an advisory opinion from the
chief medical director of the VAMC and Dr. Leonard Seeff,
chief of the liver clinic at the VAMC had been ignored.
Medical records dated in December 1995 from Fair Oaks
Hospital indicated the veteran was admitted while in a coma.
The diagnosis was end stage liver failure secondary to PBC.
In view of the rapid failure of his liver and unavoidable
outcome, he was treated with comfort measures only. He
remained in the hospital for three days before he passed
away.
A statement from the appellant received in January 2002 was
made in response to the RO's request for additional
information. The appellant's contention was that her claim
was based on surgery the veteran received at a VA Hospital in
Washington, D.C., in April 1969 and not on any surgery that
occurred in 1967 or 1968. In addition, no autopsy was
performed on her husband. She again requested an advisory
opinion from the chief medical director of the VAMC that was
based on the opinions of 3 or 4 doctors at the VA liver
clinic to include Dr. Seeff.
An opinion was offered in May 2003 by D. Robert Dufour, M.D.,
Chief of Pathology and Laboratory Medicine, Professor of
Pathology at George Washington University Medical Center.
The veteran's records were reviewed and certain aspects were
highlighted in the statement. Abnormal liver tests were
first noted in 1982, although the specific nature was not
indicated. In 1987, alkaline phosohatase was elevated to
more than 20 times normal. The report indicated that PBC is
an autoimmune disease that damages the liver slowly over the
course of many years and there is no known cause for this
disease. PBC is a specific form of cirrhosis that differs
from the more common forms related to alcohol abuse and
infections with hepatitis B or C virus. Hepatitis C virus
infection was a common complication after blood transfusion
prior to blood testing in 1990. Chronic infection with
hepatitis C occurred in about 70-85 percent of persons
infected by transfusion and led to cirrhosis in about 15-20
percent of cases by 20 years after infection. Thus, while
hepatitis C (non-A, non-B hepatitis) does not cause PBC, it
could have contributed to liver failure and thus contributed
to death. Had the veteran been infected with hepatitis C, it
would be reasonable to say that this was as likely to be the
cause of death as PBC. There was, however, no documentation
in the medical records that he actually received a
transfusion while under VA care. A discharge summary dated
in 1989 indicated the veteran received a blood transfusion in
1986, which was four years after initial abnormal liver tests
were first noted and nine years before his death, which made
it unlikely that this could have contributed. Notes from the
hospital admission in 1989 gave conflicting information about
when and if a transfusion occurred. The records noted the
transfusion to be in 1986 and 1968. The operative report
from the 1969 hernia repair indicated that blood loss during
the surgery was only 50 cc (less than 2 tablespoons), not
enough to require a transfusion. The discharge summary from
that admission indicated that the postoperative course had no
complications whatsoever, which made it unlikely that
transfusion was actually needed.
The physician's statement noted that several statements from
the appellant mentioned Dr. Seeff, who is one of the world
experts on post-transfusion hepatitis and hepatitis C. Dr.
Seeff regularly saw the veteran in the liver clinic and no
mention was made of consideration of hepatitis C (non-A, non-
B hepatitis) and no testing for hepatitis C was ever done.
Tests for hepatitis B (another possible complication of
transfusion in the 1960's) were noted to be negative in a
note from 1989. About 80 percent of people with hepatitis C
also have one positive test for hepatitis B as well. Thus,
based on the medical evidence, there was no data to support
the diagnosis of non-A, non-B hepatitis or post-transfusion
hepatitis. This was also the opinion of Dr. Strader, in a
letter dated in June 1998, who is also an expert on hepatitis
C. The opinion was that there was clear evidence of the
present of PBC; however, there was no evidence of post-
transfusion viral hepatitis documented in the medical record.
Thus, there was no evidence that any service-related
abnormality contributed to the cause of death in the veteran.
Analysis
The Board recognizes that the issue of service connection for
the cause of the veteran's death has already been decided by
the RO and is not before us in the present appeal; however, a
brief summary of the law pertaining to such cases is included
in the analysis, since the present matter involves an
assertion that disability incurred in a VA medical facility
caused the death of the veteran.
The surviving spouse of a veteran whose death was caused by a
service-connected disability may be entitled to benefits. 38
U.S.C.A. § 1310. Death is deemed to have been caused by a
service-connected disability when the evidence establishes
that a service-connected disability was either the principal
or a contributory cause of death. 38 C.F.R. § 3.312(a). A
service-connected disability is deemed to have been the
principal cause of death when it, alone or jointly with
another disorder, was the underlying cause of death or was
etiologically related thereto. 38 C.F.R. § 3.312(b). In
determining whether a service-connected disability was a
contributory cause of death, it must be shown that a service-
connected disability contributed substantially, materially,
or combined with another disorder to cause death, or that it
aided or lent assistance to the production of death. 38
C.F.R. § 3.312(c).
Under the provisions of 38 U.S.C.A. § 1151, if VA
hospitalization or medical or surgical treatment results in
additional disability or death that is not the result of the
veteran's own willful misconduct or failure to follow
instructions, disability compensation or dependency and
indemnity compensation may be awarded in the same manner as
if the additional disability or death were service connected.
See 38 C.F.R. §§ 3.358(a), 3.800(a).
Implementing regulations provide that, in determining whether
additional disability exists, the veteran's physical
condition, including the condition that the treatment was
intended to alleviate, immediately prior to the VA treatment
on which the claim is based will be compared with the
physical condition subsequent thereto. Compensation is not
payable if the additional disability or death results from
the continuation or natural progress of the disease or injury
for which the veteran was treated. 38 C.F.R. § 3.358(b)(1),
(2). Regulations also provide that the additional disability
or death must actually result from VA treatment and not be
merely coincidental therewith. In the absence of evidence
satisfying this causation requirement, the fact that
additional disability or death occurred would not, in and of
itself, warrant compensation. 38 C.F.R. § 3.358(c)(1), (2).
Regulations further provide that compensation is not payable
for the necessary consequences of VA treatment properly
administered with the express or implied consent of the
veteran or, in appropriate cases, the veteran's
representative. "Necessary consequences" are those which are
certain or intended to result from the treatment provided.
Consequences otherwise certain or intended to result from
treatment will not be considered uncertain or unintended
solely because it had not been determined, at the time
consent was given, whether that treatment would, in fact, be
administered. 38 C.F.R. § 3.358(c)(3).
Earlier interpretations of the statute and regulations
required evidence of negligence or other fault on the part of
VA, or the occurrence of an accident or an intervening,
unforeseen event, to establish entitlement to section 1151
benefits. See 38 C.F.R. § 3.358(c)(3) (1994). Those
interpretations and the cited regulatory provision were
invalidated by the United States Court of Appeals for
Veterans Claims in the case of Gardner v. Derwinski, 1 Vet.
App. 584 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456
(Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115
(1994). Accordingly, in March 1995, VA published an interim
rule amending 38 C.F.R. § 3.358 to conform to the case law.
The amendment was made effective from November 25, 1991, the
date the initial Gardner decision was issued. 60 Fed. Reg.
14,222 (Mar. 16, 1995). The interim rule was later adopted as
a final rule, 61 Fed. Reg. 25,787 (May 23, 1996) (codified at
38 C.F.R. § 3.358(c)).
Thereafter, Congress amended 38 U.S.C.A. § 1151 to preclude
compensation in the absence of negligence or other fault on
the part of VA or an event not reasonably foreseeable. That
amendment applies to claims filed on or after October 1,
1997. See 38 U.S.C.A. § 1151(a)(A)(B) (West Supp. 1997);
VAOPGCPREC 40-97 (Dec. 31, 1997).
Since the appellant's claim for benefits under 38 U.S.C.A. §
1151 was received in March 1996, prior to the effective date
of the legislative amendment to 38 U.S.C.A. § 1151, the 1997
statutory amendment does not apply. Accordingly, this claim
was initially adjudicated by the RO, and has been reviewed by
the Board, under the Gardner interpretation of 38 U.S.C.A.
§ 1151 and the interim rule issued by the Secretary on March
16, 1995, and adopted as a final regulation on May 23, 1996.
Thus, if the applicable statutory and regulatory criteria are
otherwise met, this claim could be granted without evidence
of either fault by VA or an intervening event not reasonably
foreseeable.
While the issue has been considered by the RO under the
Gardner interpretation as well as the amendment that came
into effect on October 1, 19997, the Board will consider it
only under the criteria in effect consistent with Gardner,
for the reasons stated above.
The appellant's claim of entitlement to DIC benefits is based
on medical treatment the veteran received during a VA
hospitalization from March to April 1969. Her primary
contention is that during an operative procedure the veteran
underwent, he received a blood transfusion and was, thus,
infected with hepatitis that led to cirrhosis and his
eventual death.
When a claim for DIC benefits is premised on VA treatment,
the Board's analysis is two-tiered. The principal concern is
whether any additional disability resulted from VA treatment
(if it did not represent natural progress of the disorders,
was not merely coincidental with the treatment, and was not a
necessary consequence of the treatment) and, if so, whether
such disability caused or contributed in a substantial way to
cause the veteran's death.
Based on the medical records, the evidence does not support a
finding that the veteran suffered any additional disability
in the form or hepatitis or PBC as a result of an April 1969
hernia operation at a VA facility. In fact, nothing out of
the ordinary appears to have occurred during the procedure.
The veteran tolerated the procedure nicely and there no
postoperative problems.
With regard to contention that the veteran had a blood
transfusion during the operation that led to the transmission
of hepatitis, the evidence does not support such a finding.
There is no mention of a blood transfusion in the records,
and based on information contained in the operative report
there would have been no need for one. The report stated
that there was no excessive bleeding during the procedure and
that blood loss was approximately 50 cc, which amounts to
less than two tablespoons. These facts were also pointed out
by Dr. Strader and Dr. Dufour in their statements. While
some persons who are infected with hepatitis C (non-A, non-B
hepatitis) as the result of a blood transfusion may
eventually develop cirrhosis, both physicians stated that
there was no evidence to support a finding that the veteran
had post-transfusion viral hepatitis. Dr. Dufour also
pointed out that the veteran's treating physician for PBC,
Dr. Seeff, did not mention post-transfusion hepatitis or
hepatitis C nor did he test for the disease.
The Board notes that one VA records dated in 1989 indicated
the veteran had a history of hepatitis after a blood
transfusion in 1986 while other records dated in 1989
indicated that 1968 was the year of the blood transfusion.
While this information was recorded as part of the history of
the veteran's PBC and suggests PBC was due to hepatitis that
was contracted during a 1968 blood transfusion, this
information is not reliable and has little probative value
for several reasons. First, there is no evidence that the
veteran had surgery in 1968 at a VA facility and the
appellant has not made any contentions to that effect.
Secondly, this information was recorded merely as part of the
medical history and therefore the source for such information
is unclear. The source, apparently, was not VA records since
there are no VA medical records in 1968 that indicate the
veteran had a blood transfusion. In addition, its
reliability is lacking as there are clear inconsistencies
among the records. The year of the blood transfusion was
recorded as having taken place in 1968 and 1986 and, as
noted, there is no evidence of a transfusion in 1968 at a VA
facility. Thirdly, even if the records were intended to
reflect the blood transfusion was during the 1969 hernia
operation, the operative records clearly show that a
transfusion was not needed.
The appellant's representative also raised another theory
that the veteran could have contracted hepatitis as a result
of the anesthesia used during the 1969 hernia operation. The
operative report showed that Halothane was used to
anesthetize the veteran during the surgery. According to a
section in The Merck Manual that was submitted by the
appellant, Halothane or related agents may also produce
postoperative hepatitis. The Merck Manual also stated that
the anesthesia should be suspected if hepatitis develops
within ten days, especially if preceded by unexpected fever.
It this case, it is unlikely that the anesthesia produced
hepatitis because the medical records indicated there were no
postoperative problems. Furthermore, as previously stated,
Dr. Dufour found no data to support a diagnosis of post-
transfusion hepatitis.
The Board is aware that the appellant requested an advisory
opinion by a panel of experts in the field; however, the
Board finds that that the credentials of Dr. Strader and Dr.
Dufour were sufficient to offer informed opinions.
In sum, the Board finds that there is insufficient evidence
to warrant a finding that the veteran suffered additional
disability as a result of a 1969 hernia operation. In the
absence of additional disability, there can be no finding
that VA treatment caused or contributed in a substantial way
to cause the veteran's death.
ORDER
Entitlement to DIC benefits under the provisions of
38 U.S.C.A. § 1151 is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.